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Maliani v. State

Court of Criminal Appeals of Tennessee, Nashville

September 13, 2017

PATRICK L. MALIANI
v.
STATE OF TENNESSEE

          Assigned on Briefs August 8, 2017

         Appeal from the Criminal Court for Davidson County No. 2011-B-1084 J. Randall Wyatt Jr., Judge.

         The Petitioner, Patrick L. Maliani, appeals as of right from the Davidson County Criminal Court's denial of his petition for post-conviction relief. The Petitioner contends that he received ineffective assistance of trial counsel because trial counsel failed to raise a hearsay objection to a portion of a witness' testimony. Discerning no error, we affirm the judgment of the post-conviction court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed.

          Ryan C. Caldwell, Nashville, Tennessee, for the appellant, Patrick L. Maliani.

          Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant Attorney General; Glenn R. Funk, District Attorney General; and Adeline B. Askew, Assistant District Attorney General, for the appellee, State of Tennessee.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which Robert W. Wedemeyer and J. Ross Dyer, JJ., joined.

          OPINION

          D. KELLY THOMAS, JR., JUDGE.

         FACTUAL BACKGROUND

         The Petitioner was charged with two counts of selling less than 0.5 grams of cocaine. State v. Patrick L. Maliani, No. M2012-01927-CCA-R3-CD, 2013 WL 3982156, at *1 (Tenn. Crim. App. Aug. 5, 2013), perm. app. denied (Tenn. Dec. 11, 2013). Following a jury trial, the Petitioner was convicted of one count and acquitted of the other. Id. The trial court imposed a six-year sentence for the conviction. Id.

         The facts underlying the Petitioner's conviction were that a confidential informant arranged to purchase cocaine from the Petitioner's co-defendant. Maliani, 2013 WL 3982156, at *5. The investigating officer testified at trial that the confidential informant told her that the co-defendant agreed to the deal and that the co-defendant said that she could get cocaine from "her man." Id. At the appointed time, the Petitioner and the co-defendant arrived at the agreed upon location in the Petitioner's car. Id.

         The co-defendant exited the car and gave less than 0.5 grams of cocaine to the confidential informant in exchange for forty dollars. Maliani, 2013 WL 3982156, at *5. While the exchange occurred, the Petitioner got out of the car and began "looking around" in a manner that made the investigating officer believe that the Petitioner "was acting as a 'look-out' during the drug transaction." Id.

         Based upon the foregoing, the jury convicted the Petitioner of selling less than 0.5 grams of cocaine. Maliani, 2013 WL 3982156, at *7. On direct appeal, a panel of this court held that the evidence was sufficient to prove that the Petitioner "was criminally responsible for the sale of less than 0.5 grams of cocaine," citing the Petitioner's "presence and companionship with [the co-defendant] before and after the commission of the offense, along with his actions during the offense." Id. at *16. Our supreme court declined to review this court's decision on direct appeal.

         The Petitioner filed a timely pro se petition for post-conviction relief. An attorney was appointed to represent the Petitioner, and an amended petition was filed, alleging that trial counsel was ineffective for failing to raise a hearsay objection to the investigating officer's testimony that the ...


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